Drug-tampering probe creates legal logjam
Sunday April 14, 2013
It was a seldom-seen event: nine attorneys and their 15 clients crowded into the Berkshire Superior courtroom to present a motion asking for information on a criminal investigation into alleged drug tampering at a state crime lab, and what effect, if any, the probe would have on their cases.
What brought the lawyers and defendants to the courtroom on March 27 concerned a now-shuttered state drug-testing lab 70 miles away in Amherst and a chemist named Sonja Farak, who is facing criminal charges for allegedly tampering with drug evidence she was supposed to be testing but instead was using.
The attorneys in Pittsfield filed a motion seeking information on the drug cases handled by Farak as well as any handled by the Amherst lab in general. The lawyers also wanted answers as to the lab's procedures, protocols, accreditation, records of the calibration of the equipment used in testing, and information on the lab workers themselves.
In January, Farak, 35, of Northampton, was arrested and charged with four crimes after an investigation allegedly revealed she had stolen drug samples and replaced them with counterfeits. She has pleaded not guilty to the charges and is out on $5,000 bail.
Farak since has been indicted by a statewide grand jury and now faces 10 charges: four counts each of theft of a controlled substance from an authorized dispensary and tampering with evidence, and two counts of possession of a Class B substance (cocaine).
The lab has been shut down during the state police inquiry into the allegations.
Farak worked at one of four statewide labs that analyze contraband seized by state, local and sometimes federal law-enforcement agencies to determine whether the evidence contains illegal drugs. The most common substances tested include cocaine, heroin, marijuana and prescription drugs, according to the state police.
The four labs are in Amherst, Jamaica Plain, Sudbury and Worcester. The first three are part of the Massachusetts State Police Forensic Services Group. The Worcester lab is overseen by the Worcester District Attorney's Office. The Amherst and Jamaica Plain labs had been run by the state Department of Public Health but were taken over by the state police and are closed amid that agency's tampering investigations.
Berkshire District Attorney David F. Capeless said his office so far has found 21 "open and active" Superior and District court cases in the county that include alleged drugs tested by Farak, a number almost twice what Capeless gave only a month ago. He estimated there may be as many as 900 closed cases dating to 2004 -- the year Farak began working at the Amherst lab -- that also could be affected.
Capeless said he hasn't ruled out having drug evidence in the active cases retested at a different state drug-testing lab, which he believes would pave the way for continuing to prosecute them.
"I foresee a lot of litigation if the [Berkshire District Attorney's Office] plans to have the [alleged] drugs reweighed," said lawyer Nathaniel K. Green, the attorney in charge at the Committee for Public Counsel Services in Berkshire County. "There are chain-of-custody issues, among other things."
Green said there are defendants currently being held whose cases may be affected by the Farak case. Green said his office plans on requesting bail reconsideration hearings in the near future.
Statewide, the Farak case is being overshadowed by an earlier one involving Annie Dookhan, a former chemist at the now-shuttered Jamaica Plain facility, in which as many as 34,000 criminal cases may be affected. But here in the Berkshires and the rest of Western Massachusetts, the fallout from the Farak case is becoming costly in both time and money as district attorneys and defense attorneys scramble to determine whether their cases could have been tainted by bad evidence.
It likely will end up costing taxpayers hundreds of thousands of dollars due to overtime and staffing expenses on the prosecutorial and defense ends. It's also slowing the judicial process in cases that include drugs allegedly tested by Farak. Beyond this, it's slowing new -- and unrelated -- cases in which evidence is waiting to be tested due to backlogs at the labs that have had to scramble to take up the slack of the two closed facilities.
"We're going to continue to feel the effects from this," Capeless said, without specifying a timetable.
According to David Procopio, the spokesman for the state police, the closure of the Amherst and Jamaica Plain labs "has impacted turnaround time" on how long it takes evidence to be tested to determine if illegal drugs are present.
Before the closure of the Jamaica Plain lab, the main lab at Sudbury had a turnaround time of about three weeks, he said. Now it's eight months. Additionally, the state police have had to turn to the UMass Medical Center's Drugs of Abuse Lab in Worcester to assist in analyzing the drug evidence that previously would have gone to the Amherst lab.
While Capeless initially estimated it would cost his office about $50,000 to deal with the added work, he has since backed away from that figure and hasn't given any new estimated cost.
Last month, he said it cost about $15,000 just to look into whether any cases locally had been handled by Dookhan or others at the Jamaica Plain lab. None were, he said.
From the other side, Green told The Eagle the additional costs to his office of pursuing the cases "remain to be seen."
Capeless said Hampden County has many more cases than in Berkshire County because the majority of the Berkshire County Drug Task Force cases -- as well as those handled by the state police -- send their evidence for testing to the crime lab in Sudbury.
Capeless, along with other district attorneys from Western Massachusetts, recently went to Boston to speak with Gov. Deval Patrick's office about getting funding to handle the added workload and costs.
Funds were made available by the state for cases from the Jamaica Plain lab, but Capeless said that money "only related to the Dookhan cases" and not to the Amherst lab.
On Jan. 9, Dookhan pleaded not guilty to obstruction of justice, evidence tampering, and perjury charges for allegedly faking test results and tampering with drug evidence for unknown reasons. (She remains free on $10,000 bail.) Thousands of drug convictions in Massachusetts are being reviewed as a result, according to The Associated Press.
Most recently it was revealed that investigators for state Inspector General Glenn Cunha found drug evidence in disarray at the Jamaica Plain lab. In one example, investigators said they found a plastic bag containing a "white rock substance," along with evidence dating to 1996, in a supervisor's office, the AP reported.
The closed labs in Amherst and Jamaica Plain, while under the supervision of the health department, were never accredited by the American Society of Crime Laboratory Directors/ Laboratory Accreditation Board (ASCLD/LAB), according to its executive director, Ralph M. Keaton.
"They may not have had so many problems if they had been," he said.
The not-for-profit crime and forensic laboratory accrediting body based in Missouri handles accreditation for 400 federal and state labs across the country, including all of those run by the Massachusetts State Police.
"It wasn't until the labs were taken over by the Massachusetts State Police ... that they discovered the problems," he said.
In Massachusetts, unlike New York and other states, accreditation is not mandatory, according to Keaton. The two drug labs that remain open in Massachusetts are accredited.
But the state is working on legislation to mandate accreditation of all crime labs in the state.
State Senate Bill 1112, which proposes mandatory accreditation for all drug-testing labs in Massachusetts, is sitting in the joint committee on Public Safety and Homeland Security.
According to Sen. William N. Brownsberger (D-Belmont), who sponsored the bill, "The intention of this bill is to strengthen the quality and independence of the drug laboratories in Massachusetts."
The bill, he said, is in the early stages and was in response to the drug lab investigations and was filed on behalf of the Committee for Public Counsel Services.
Alicia M. Hilton, an attorney, former special FBI agent and law professor, goes much further in her assessment of what's needed to maintain the integrity of the state's drug labs.
In "Guilty Until Proven Innocent: Evidence Tampering, Drug and Crime Lab Misconduct and Law Enforcement Ethics," which appeared in the November 2012 online version of the Rutgers University Law Review, Hilton writes that lab employees should be given random drug tests, periodic background checks and stress-management counseling.
"Ethical lab personnel who previously followed guidelines may begin committing misconduct when experiencing stress," she writes, which "can contribute to illegal drug use, prescription drug abuse, and alcohol abuse."
Hilton warns that these types of incidents can have "dire consequences," because when "justice is perverted, people are more fearful of false arrest. When citizens do not trust police, it is more difficult for officers to conduct interviews and develop informants. Old-fashioned policing techniques like these, not science, often are the best way to solve crimes."
Meanwhile, in Berkshire Superior Court, Judge John A. Agostini last month ordered that the District Attorney's Office acquire and turn over the "full case file for each of the drug evaluations involving these  defendants. The case file should contain most, if not all, of the information that has been requested by the defendants."
The information is due by the end of this month.
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Massachusetts drug-testing crime labs
Current status: Closed
Overseen by: State police
Function: Analyzes contraband seized by state, local and sometimes federal law-enforcement agencies to determine whether the evidence contains illegal drugs, including prescription drugs.
Comment: The lab was closed by the Massachusetts State Police in January after chemist Sonja Farak allegedly was found to be tampering with drug evidence and stealing cocaine from the lab for personal use. The lab was taken over by the state police last July 1 but remains closed while state investigators look into drug-tampering allegations at the facility.
Current status: Closed
Overseen by: State police
Function: Same as Amherst lab.
Comment: The lab, located within the state Department of Public Health's William A. Hinton State Laboratory Institute, was closed by state police in August after state investigators allegedly learned that former chemist Annie Dookhan had faked or altered thousands of drug samples for unknown reasons. The lab was taken over by the state police on July 1 but remains closed while state investigators look into drug-tampering allegations at the facility.
Current status: Open
Overseen by: State police
Function: Provides DNA analysis, fingerprint identification and chemical analysis of various types of evidence for local, state and some federal police agencies.
Comment: The primary drug-testing lab in the state.
Current status: Open
Overseen by: Worcester County District Attorney's Office
Function: Same as Amherst and Jamaica Plain labs.
Comment: Lab has been assisting the state police by analyzing drug evidence from police agencies that previously used the Amherst lab.
Sources: Massachusetts State Police, Massachusetts Attorney General's Office, Eagle research
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